BILL ANALYSIS                                                                                                                                                                                                    Ó



          SENATE COMMITTEE ON PUBLIC SAFETY
                             Senator Loni Hancock, Chair
                                2015 - 2016  Regular 

          Bill No:    AB 256        Hearing Date:    June 23, 2015    
          
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          |Author:    |Jones-Sawyer                                         |
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          |Version:   |June 16, 2015                                        |
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          |Urgency:   |No                     |Fiscal:    |Yes              |
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          |Consultant:|MK                                                   |
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                            Subject:  Falsifying Evidence



          HISTORY

          Source:   California Attorneys for Criminal Justice

          Prior Legislation:AB 1993 (Romero), Chapter 620, Statutes of  
          2000 


          Support:  American Civil Liberties Union; American Friends  
                    Service Committee; California District Attorneys  
                    Association; California Police Chiefs Association,  
                    Inc.; California Public Defenders Association; Ella  
                    Baker Center for Human Rights; Los Angeles County  
                    District Attorney's Office

          Opposition:None known

          Assembly Floor Vote:                 79 - 0


          PURPOSE

          The purpose of this bill is to expand the prohibition against  
          knowingly, willfully, and intentionally tampering with evidence  
          to include digital images and video recordings.







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          Existing law provides that every peace officer who files any  
          report with the agency which employs him or her regarding the  
          commission of any crime or any investigation of any crime, if he  
          or she knowingly and intentionally makes any statement regarding  
          any material matter in the report which the officer knows to be  
          false, is guilty of filing a false report punishable by  
          imprisonment in the county jail for up to one year, or in the  
          state prison for one, two, or three 
          years. (Penal Code §118.1.) 

          Existing law provides that every person who, knowing that any  
          book, paper, record, instrument in writing, or other matter or  
          thing, is about to be produced in evidence upon any trial,  
          inquiry, or investigation whatever, authorized by law, willfully  
          destroys or conceals the same, with intent thereby to prevent it  
          from being produced, is guilty of a misdemeanor (Penal Code  
          §135.) 

          This bill additionally specifies that the prohibition on  
          destroying or concealing evidence applies to a digital image or  
          a video recording owned by another and applies also if it was  
          erased with the intent to prevent it or its content from being  
          produced.

          Existing law provides that every person who reports to any peace  
          officer, or district attorney, that a felony or misdemeanor has  
          been committed, knowing the report to be false, is guilty of a  
          misdemeanor. (Penal Code §148.5 (a).) 

          Existing law makes it a misdemeanor for a person to knowingly,  
          willfully, and intentionally alter, modify, plant, place,  
          manufacture, conceal, or move any physical matter, with specific  
          intent that the action will result in a person being charged  
          with a crime, or with the specific intent that the physical  
          matter be will be wrongfully produced as genuine or true upon  
          any trial, proceeding or inquiry. (Penal Code, §141(a).) 

          This bill specifies that the prohibition against a peace officer  
          knowingly, willfully and intentionally tampering with physical  
          evidence to charge someone with a crime or to produce as true  
          evidence at trial includes tampering with a digital image or  
          video recording. 









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          Existing law makes it a felony for a peace officer to knowingly,  
          willfully, and intentionally alter, modify, plant, place,  
          manufacture, conceal, or move any physical matter, with specific  
          intent that the action will result in a person being charged  
          with a crime, or with the specific intent that the physical  
          matter be will be wrongfully produced as genuine or true upon  
          any trial, proceeding or inquiry. (Penal Code §141(b).) 

          This bill additionally makes it a felony for a peace officer to  
          knowingly, willfully, intentionally and wrongfully tamper with a  
          digital image, or video recording with the specific intent that  
          the physical matter, digital image or video recording will be  
          concealed or destroyed or fraudulently represented as the  
          original evidence upon a trial, proceeding, or inquiry. 

                    RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION

          For the past eight years, this Committee has scrutinized  
          legislation referred to its jurisdiction for any potential  
          impact on prison overcrowding.  Mindful of the United States  
          Supreme Court ruling and federal court orders relating to the  
          state's ability to provide a constitutional level of health care  
          to its inmate population and the related issue of prison  
          overcrowding, this Committee has applied its "ROCA" policy as a  
          content-neutral, provisional measure necessary to ensure that  
          the Legislature does not erode progress in reducing prison  
          overcrowding.   

          On February 10, 2014, the federal court ordered California to  
          reduce its in-state adult institution population to 137.5% of  
          design capacity by February 28, 2016, as follows:   

                 143% of design bed capacity by June 30, 2014;
                 141.5% of design bed capacity by February 28, 2015; and,
                 137.5% of design bed capacity by February 28, 2016. 

          In February of this year the administration reported that as "of  
          February 11, 2015, 112,993 inmates were housed in the State's 34  
          adult institutions, which amounts to 136.6% of design bed  
          capacity, and 8,828 inmates were housed in out-of-state  
          facilities.  This current population is now below the  
          court-ordered reduction to 137.5% of design bed capacity."(  
          Defendants' February 2015 Status Report In Response To February  
          10, 2014 Order, 2:90-cv-00520 KJM DAD PC, 3-Judge Court, Coleman  








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          v. Brown, Plata v. Brown (fn. omitted).

          While significant gains have been made in reducing the prison  
          population, the state now must stabilize these advances and  
          demonstrate to the federal court that California has in place  
          the "durable solution" to prison overcrowding "consistently  
          demanded" by the court.  (Opinion Re: Order Granting in Part and  
          Denying in Part Defendants' Request For Extension of December  
          31, 2013 Deadline, NO. 2:90-cv-0520 LKK DAD (PC), 3-Judge Court,  
          Coleman v. Brown, Plata v. Brown (2-10-14).  The Committee's  
          consideration of bills that may impact the prison population  
          therefore will be informed by the following questions:

              Whether a proposal erodes a measure which has contributed  
               to reducing the prison population;
              Whether a proposal addresses a major area of public safety  
               or criminal activity for which there is no other  
               reasonable, appropriate remedy;
              Whether a proposal addresses a crime which is directly  
               dangerous to the physical safety of others for which there  
               is no other reasonably appropriate sanction; 
              Whether a proposal corrects a constitutional problem or  
               legislative drafting error; and
              Whether a proposal proposes penalties which are  
               proportionate, and cannot be achieved through any other  
               reasonably appropriate remedy.


          COMMENTS
          1.  Need for This Bill
          
          According to the author:

               In 2000, Assembly Bill 1993(Romero) was signed into law  
               making it a felony for a peace officer to knowingly  
               alter, place, or move physical matter with the specific  
               intent to wrongfully charge another person for a crime.  
               This Romero bill was inspired by the Los Angeles Police  
               Department Rampart scandal.

               However, with technological advancements, this law has  
               not been updated to accommodate these developments.  
               Personal mobile phones and other electronic devices now  
               allow individuals to capture images and videos.  This  








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               recording capability has provided the public an  
               opportunity to monitor instances of police misconduct.

               Throughout the state, there have been several instances  
               of police misconduct documented by civilians on their  
               personal mobile devices.  In many instances, peace  
               officers have temporarily confiscated person's mobile  
               devices as possible evidence, only to return the mobile  
               devices with material digital images and/or videos  
               deleted or destroyed. 

               For example, in May 2013, police in Bakersfield  
               temporarily confiscated the mobile devices of two  
               witnesses who recorded police beating a 33-year-old  
               father of four.  The victim of the police beating  
               subsequently died.  The police returned the devices  
               with the video of the incident deleted. 

               Increasingly, as the public captures questionable  
               police practices on video, it is critical that we send  
               a message that altering or deleting these videos will  
               not be tolerated.  AB 256 ensures the law will not be  
               misinterpreted by specifically clarifying that "any  
               physical matter" includes digital images and video  
               recordings.

          2.  Updating the Law to Include Video Recordings

          Existing law prohibits any individual from willfully destroying  
          or concealing, knowing it will be evidence in a case, with the  
          intent of keeping it from being produced in that case.  It  is  
          generally a misdemeanor but is a felony if a peace officer  
          knowingly, willfully and intentionally alters, modifies, plants,  
          places, manufacturers conceals or moves and physical matter with  
          the intent that the action will result in a person being charged  
          with a crime or that he evidence will be represented as original  
          in a trial.  This bill updates these sections to include a  
          digital image or video recording

          Several U.S. Courts of Appeals have specifically recognized a  
          First Amendment right to record the police and/or other public  
          officials in a public place. (See Glik v. Cunniffe (1st Cir.  
          2011) 655 F.3d 78, 85 ("[A] citizen's right to film government  
          officials, including law enforcement officers, in the discharge  








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          of their duties in a public space is a basic, vital, and  
          well-established liberty safeguarded by the First Amendment."];  
          ACLU of Illinios v. Alvarez (7th. Cir. 2012) 679 F.3d 583, 595  
          ["The act of making an audio or audiovisual recording is  
          necessarily included within the First Amendment's guarantee of  
          speech and press rights as a corollary of the right to  
          disseminate the resulting recording."]; Fordyce v. City of  
          Seattle (9th Cir. 1995) 55 F.3d 436, 438 (assuming a First  
          Amendment right to record the police); and Smith v. City of  
          Cumming (11th Cir. 2000) 212 F.3d 1332, 1333 ["The First  
          Amendment protects the right to gather information about what  
          public officials do on public property, and specifically, a  
          right to record matters of public interest."].) 

          In California there is no law preventing a civilian from openly  
          recording a police officer carrying out his or her duties in a  
          public place.  However, a person does not have the right to  
          interfere with the police when recording.  If an individual does  
          interfere with an officer doing his or her work, that person may  
          be charged with obstruction of justice.  In this day and age  
          where many cell phones have cameras and video recording  
          capabilities, recording an interaction between police and a  
          member of the public is becoming more and more common.  There  
          have been reported incidents of police officers either trying to  
          arrest individuals or destroy photographs or recordings when the  
          officers realize they are being recorded.  This bill would  
          subject an officer to felony prosecution for tampering with or  
          confiscating such photographs or video recordings. 



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